1. “States’ Rights Apogee, 1776-1840”
By Ryan M. Setliff
A Thesis Submitted To
The Faculty of the History Department and Graduate School
At Liberty University
In Partial Fulfillment of the Requirements for a
Masters of Arts in History
December 2011
2. -ii-
– Abstract –
America’s states’ rights tradition has held much influence since the ratification of the
U.S. Constitution in 1788. In late 1798, in response to the Federalist administration’s adoption
of the Alien and Sedition Acts, the Virginia and Kentucky Resolutions were formally adopted by
the legislatures of Virginia and Kentucky respectively. These resolutions set a lasting precedent
for state interposition and nullification. As well concurrence with these doctrines can be found
in the Virginia Resolves of 1790, the constitutional debates of 1787-1790, and all throughout the
colonial-revolutionary period of the 1760s to 1780s. In time, the Virginia and Kentucky
Resolutions would gain stature and would define the American political culture of the nineteenth
century. They became known as the Principles of 1798. The Tariff Crisis of 1828-1832 in South
Carolina may be contextualized in light of the Principles of 1798. This inquiry endeavors to
answer why those principles are integral to the American constitutional tradition. The continuity
of the 1798 resolves with colonial-revolutionary practice reveals them as neither rash nor
innovative, but in accord with the localism innate to American political tradition.
3. -iii-
– Acknowledgments –
Special thanks to my thesis committee participants for their mentorship. In particular, my
thesis advisor Dr. Samuel C. Smith, Professor of History, and committee reader, Dr. Roger
Schultz, Professor of History and Dean of the School of Arts and Sciences, have my gratitude for
their assistance and encouragement in this project.
5. Setliff 1
Introduction
“[C]onfidence is everywhere the parent of despotism—free government is founded in jealousy,
and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to
bind down those whom we are obliged to trust with power: that our Constitution has accordingly
fixed the limits to which, and no further, our confidence may go… In questions of power, then, let
no more be heard of confidence in man, but bind him down from mischief by the chains of the
Constitution . . .”
—Thomas Jefferson, Draft of the Kentucky Resolutions1
The Principles of 1798
The states‘ rights tradition reverberated through the political discourse following the
adoption of the Constitution and was an outgrowth of the jealous solicitude for local rights and
individual liberty embodied in the American Revolution. In late 1798, the Virginia and
Kentucky Resolutions were written and formally adopted by the respective state legislatures in
response to the Federalist administration‘s adoption of the Alien and Sedition Acts which they
perceived as unconstitutional. These resolutions set a powerful precedent for state interposition
and nullification. In time, they would gain stature and define the American political culture of
the early nineteenth century—and would become known as the Principles of 1798. This inquiry
endeavors to answer why those principles are integral to the American constitutional tradition.
Foreshadowing state interposition, Senator William Maclay of Pennsylvania remarked in
his journal for 22 March 1790: ―Is it to be expected that a federal law passed directly against the
sense of a whole State will ever be executed in that State?‖2
The Tenth Amendment to the
1
Thomas Jefferson, Declaration and Protest of Virginia, 1825, The Writings of Thomas Jefferson,
Memorial Edition, Andrew Lipscomb and Albert Ellergy Bergh, eds. (Washington, DC: Thomas Jefferson Mem.
Assoc., 1905), 7:304.
2
Richard Weaver, ―The South and the American Union,‖ The Southern Essays of Richard Weaver
(Indianapolis, IN: Liberty Press, 1987), 234; Texas v. White, 74 U.S. 700 (1869). Author‘s Note. What is a ‗State‘ in
the American political parlance? Justice Salmon Chase offered this definition of state, ―A State, in the ordinary
sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and
organized under a government sanctioned and limited by a written Constitution, and established by the consent of
6. Setliff 2
Constitution manifests the integral role of the states vis-à-vis the limited federal role evident in a
delegation of express powers.3
The powers conferred upon the federal government, under the
Constitution, including those of Congress, are delegated by the people, enumerated in express
terms in that instrument, and are limited in scope.4
The people delegate to the government only
so much power as they think prudent to exercise while they reserve to themselves all the rights
and powers that are not delegated to the government, whether federal or state. The preamble to
the Constitution reads, ―We the people… do ordain and establish this Constitution…,‖ which
declares that power resides with the people. ―All [federal] legislative Powers herein granted
shall be vested in Congress….‖ This implies a limitation upon the federal power.5
As had been
the case in the old Confederation, pursuant to its thirteenth article, all remaining authority
belonged to the people, including the power to make and unmake government. All acts by the
Congress, or any officer, beyond the limits of power delegated, were considered to be null and
void ipso facto.6
To encapsulate this doctrine of delegation in the constitutional fabric, the Tenth
Amendment was proposed and ratified in 1791. ―The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to
the governed.‖
3
Frederick Drake and Lynn R. Nelson, eds., States’ Rights and American Federalism: A Documentary
History (Westport, CT: Greenwood Press, 1999), 67-72.
4
Clarence Carson, The American Tradition (Irvington-on-Hudson, NY: Foundation for Economic
Education, 1964), 73, 80-81; Wesley A. Riddle. The American Political Tradition (Irvington-on-Hudson, NY:
Foundation for Economic Education, 1996), 17.
5
Russell Kirk,The American Cause (Wilmington, DE: ISI, 2002), 68; Roger Pilon, ―Madison‘s
Constitutional Vision: The Legacy of Enumerated Powers,‖ James Madison and The Future of Limited Government
(Washington, DC: Cato Institute, 2002), 29. ―The most basic limit on power, however, could not have been simpler
in its conception. In fact, it can be reduced to a short admonition: if you want to limit power, don‘t give it in the first
place. Notice that is not simply an instruction for limiting government. It is a principle of legitimacy. It draws from
the Declaration‘s claim that government‘s just powers are derived from the consent of the governed. Powers are
legitimate if and only if they have been delegated by the people and enumerated in the document through which the
people constitute themselves as a political entity, their constitution. Thus, the doctrine of enumerated powers.‖
6
John R. Graham, Free, Sovereign, and Independent States: The Intended Meaning of the American
Constitution (Gretna, LA: Pelican Pub., 2009), 181.
7. Setliff 3
the people.‖7
Jefferson inferred that the Tenth Amendment was the ―foundation‖ of the
Constitution. ―The states supposed that by their tenth amendment, they had secured themselves
against constructive powers,‖ he remarked. ―To take a single step beyond the boundaries thus
specifically drawn around the powers of Congress, is to take possession of a boundless field of
power, no longer susceptible of any definition.‖8
The Constitution, he added, should be
construed ―according to the true sense in which it was adopted by the States, that in which it was
advocated by its friends [such as Nicholas and Randolph]… I am for preserving to the States the
powers not yielded by them by the Union.‖9
Henry Lee before the Virginia Convention: ―When a question arises with respect to the
legality of any power,‖ the question will be ―Is it enumerated in the Constitution? … It is
otherwise arbitrary and unconstitutional.‖ Lee compared the Constitution with the ―familiar
manner‖ of ―a man [who has] delegated certain powers to an agent.‖ He asserted, it would ―be
an insult upon common sense to suppose that the agent could legally transact any business for his
principal which was not contained in the commission whereby the powers [of the agent] were
delegated.‖10
Thus the states as parties to the compact (i.e., U.S. Constitution) were the
principals, and the federal government but its agent in trust.
7
U.S. Const., Amd. X.; Akhil Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT:
Yale Univ. Press, 1998), 123. ―[W]e the people conquer government by dividing it between two rival governments,
state and federal, a structural scheme textually reaffirmed in the Tenth Amendment. In this sense, the Tenth
Amendment beautifully sums up many of the themes of prior amendments—and it is wholly unsurprising that, alone
among the successful amendments, the Tenth was the only one proposed by every of the state ratifying conventions
that proposed amendments.‖
8
David N. Mayer, The Constitutional Thought of Thomas Jefferson, (Charlottesville, VA: Univ. of Virginia
Press, 1994), 190.
9
Thomas Jefferson to Elbridge Gerry, 1799, The Writings of Thomas Jefferson, Memorial Edition, Andrew
Lipscomb and Albert Ellergy Bergh, eds. (Washington, DC: Thomas Jefferson Mem. Assoc., 1905), Vol. 10, 77.
10
Jonathan Eliot, ed., The Debates, Resolutions, and Other Proceedings, in Convention, on the Federal
Convention (Washington, DC: 1828), 3:186; Raoul Berger, Federalism: The Founders’ Design (Norman, OK: Univ.
Oklahoma Press, 1987), 65; Peter Zavodnyik, The Age of Strict Construction: A History of the Growth of Federal
Power (Washington, DC: The Catholic Univ. of America Press, 2007), 30-31. Lee‘s articulation of agency (vis-à-vis
the role of federal authority) fits snuggly like a puzzle piece with the character of the federal compact described in
chapter two, and it is coincident with the understanding of the Virginia Convention of 1788.
8. Setliff 4
Prior to the adoption of the first ten amendments in 1791, James Madison reviewed the
many criticisms of the Constitution as it stood. ―The great mass of the people who oppose it,‖
found that ―it did not contain effectual provision against the encroachments on particular rights,
and [for] those safeguards which they have long been accustomed to have interposed between
them and the magistrate who exercised the sovereign power…‖11
Here interposition is presented
as a desirable and proper constitutional remedy. Just as the Supreme Court may interpose via
judicial review, the states may justly interpose their authority between their citizens and that of
the federal government, whenever the later usurps the rights of the states or the people.12
This
much was asserted in the pleadings for the adoption of the Constitution: Alexander Hamilton
declared it an ―axiom that the State governments will, in all possible contingencies, afford
complete security against invasions of the public liberty by the national authority.‖13
In the
Virginia Resolutions, Madison proclaimed, ―the States‖ who ―are parties‖ to the ―compact‖ and
―have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for
maintaining within their respective limits, the authorities, rights and liberties appertaining to
them.‖14
The states are ―the true barriers of our liberty in this country,‖ avowed Jefferson, and
remain ―the wisest conservative power ever contrived by man.‖15
The states stand as ready-made instruments to counter the encroachments of an out-of-
11
Felix Morley, Freedom and Federalism (Chicago, IL: Regnery, 1959; repr. Indianapolis, IN: Liberty
Fund, 1981), 17; Jack N. Rakove, Declaring Rights: A Brief History with Documents (New York, NY: Palgrave
Macmillan, 1998), 172. Italicized emphasis is mine.
12
Ibid.; Richard E. Ellis, ―Nullification,‖ Oxford Companion to the Supreme Court, Kermit L. Hall, ed.
(New York, NY: Oxford Univ. Press, 1992), 601.
13
Alexander Hamilton, ―Federalist #28,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY:
Barnes and Noble Books, 1996), 225; George W. Carey, The Federalist: Design for a Constitutional Republic
(Chicago, IL: Univ. of Illinois Press, 1989), 118-121; Kevin Gutzman, Virginia's American Revolution: From
Dominion to Republic, 1776-1840 (Lanham, MD: Lexington Books, 2006), 126.
14
James Madison, ―Virginia Resolutions,‖ The American Republic: Primary Sources (Indianapolis, IN:
Liberty Fund, 2002), 398.
15
David N. Meyer, The Constitutional Thought of Thomas Jefferson (Charlottesville, VA: Univ. Press of
Virginia, 1999), 187, 199.
9. Setliff 5
bounds federal government. When faced with a misplaced exercise of federal power, a state may
set itself in variance to an unconstitutional measure, and deploy effectual resistance by its
magistrates and officers to arrest federal usurpations that are without remedy. Madison
described this state prerogative at the First Congress: ―The state legislatures will jealously and
closely watch the operations of this government, and will be able to resist with more effect every
assumption of power.‖16
Jurist Edwin Vieira of Harvard Law made this keen observation:
The traditional understanding of interposition is that it involves an assertion of a
State‘s constitutional privilege, right, and power to defend by direct action her and
her citizens‘ constitutional rights against the usurpation of power by any official
or agent of the General Government. So, rightly understood, interposition is not
an extra-constitutional or anti-constitutional doctrine, but a device for protecting
and preserving the Constitution. Interposition embodies the States‘ privilege and
power of legal, political, and even armed self-defense against oppression of their
constituent people or their own destruction qua States.17
Interposition as a remedy to the abuse of power has found advocacy among the greatest
political thinkers, such as Johannes Althusius, John Calvin, David Hume, Thomas Jefferson,
John Calhoun, and John Acton. Republican self-government is not conceivable without states‘
rights and its corollary of state interposition.18
In pressing for adoption of the Constitution, the
authors of the Federalist averred that the states would provide ―a complete counterpoise‖ to ―the
power of the Union.‖19
The most salient point that the Principles of 1798 addressed was that a limited
government that is the sole arbiter of the scope of its own powers cannot remain limited. Power
16
James Madison, Selected Writings of James Madison, Ralph L. Ketcham, ed. (Indianapolis, IN: Hackett,
2006), 173.
17
Edwin Veira, How to Dethrone the Imperial Judiciary (San Antonio, TX: Vision Forum, 2004), 155.
18
Douglas F. Kelly, The Emergence of Liberty in the Modern World; The Influence of Calvin on Five
Governments from the 16th
Through the 18th
Centuries (Phillipsburg, NJ: Presbyterian and Reformed Pub., 1992),
29-31; Donald Livingston, ―The Founding and the Enlightenment: Two Theories of Sovereignty,‖ Vital Remnants:
America’s Founding and the Western Tradition, Gary L. Gregg II, ed. (Wilmington, DE: ISI Books, 1999), 243-274.
19
Hamilton, ―Federalist #17,‖ Benjamin F. Wright, ed., 169.
10. Setliff 6
corrupts, and it must be restrained. The authority to exercise power must be checked, diffused
and dispersed. This is a lesson historic experience has demonstrated.20
Many jurists see these
Virginia and Kentucky Resolutions as coherent, reasoned, and a practical import from the
political philosophy of the Revolution. The Principles of 1798 convey the basics of
constitutionalism in an expressive, yet logical, approach and are possessed of enormous stature
given their pedigree, and second only to the Constitution and the Declaration of Independence in
their merit among the plethora of American charters.21
Kevin Gutzman noted the Resolutions
should not be viewed as the fabrication of distraught minds faced with peculiar circumstances,
but rather a reasoned and measured approach. These clarion statements of the republican
position match up faithfully to the explication of the federal Constitution offered by Federalists
in the Virginia Convention of 1788 to secure ratification.22
The history of liberty is a record of great charters. They were either fashioned to forestall
anticipated encroachments upon liberty or made in reaction to a violation after the fact. Since
the days of the Magna Charta, the English people have made sundry attempts to fortify their
historic rights and guard against depredations of those rights at the hands of the government.
Written charters served as an aide memoire to political leaders about the limits of their powers.
In the Old World, this custom was nowhere stronger than in England. This practice England
bequeathed to her colonies in North America. Colonial charters were crafted to uphold liberty,
established rights, and popular rule. The Declaration of Independence signified the aspirations
20
Thomas E. Woods, Jr., ―Nullification: The Jeffersonian Brake on Government,‖ The Freeman. Vol. 52,
No. 3. Mar. 2002; Thomas E. Woods, Jr., The Politically Incorrect Guide to American History (Washington, DC:
Regnery Pub., 2004), 42.
21
William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions
and Their Legacy (New York, NY: Palgrave MacMillan, 2004), 162.
22
Gutzman, Virginia’s American Revolution, 114.
11. Setliff 7
of a free people.23
Similarly the Virginia Resolves of 1790, the Virginia Resolutions of 1798,
and the Kentucky Resolutions of 1798 and 1799 stood in continuity with this tradition.
Evocative of the colonial era charters, states still possessed their own unique charters
through their respective constitutions. States were the building blocks of the Union and jealous
to guard their reserved rights and the liberty of their citizens. The need for suitable mediation
compelled the states to demarcate discernible lines concerning the judgment of offenses by the
federal government. Resolutions, remonstrance, and other measures aided the general purpose.
The states‘ duty to uphold liberty demanded a return to ‗the unquestionable right to judge of its
infractions,‘ though the states‘ faculty to arbitrate conflicts was limited yet resolute.24
In 1798, the Virginia and Kentucky Resolutions would earn their place in history as
charters of free government. These Principles of 1798 would become the diadem of republican
liberties in the American political discourse.25
Jefferson‘s theory of federalism affirmed that ―the
true barriers of our liberty in this country are our State governments.‖26
As Gutzman observed
the elements of the Virginia Resolutions had been present in its political tradition for decades.27
The continuity of the 1798 resolves with colonial-revolutionary practice reveals them as neither
rash nor innovative, but in accord with the localism innate to American political tradition.
23
M. Stanton Evans, The Theme is Freedom: Religion, Politics, and the American Tradition (Washington,
DC: Regnery Pub., 1994), 150-51; 260-261; James Madison, ―Charters,‖ 18 Jan., 1791, Lance Banning, Liberty and
Order: The First Party Struggle (Indianapolis, IN: Liberty Fund, 2004), 227; James McClellan, Liberty, Order, and
Justice: An Introduction to the Constitutional Principles of American Government (Indianapolis, IN: Liberty Fund,
2000), 139; William J. Watkins, Jr., ―The Kentucky and Virginia Resolutions: Guideposts for Limited
Government,‖ Independent Review. Vol. 3. No. 3 (Winter 1999), 385; Watkins, Reclaiming the American
Revolution, 59.
24
H.L. Cheek, Jr., Calhoun and Popular Rule: The Political Theory of Disquisition and Discourse
(Columbia, MO: Univ. Press of Missouri, 2001), 47.
25
Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776-1876 (Lawrence, KS: Univ.
Press of Kansas, 2000), 43.
26
Meyer, 199.
27
Gutzman, Virginia’s American Revolution, 116.
12. Setliff 8
The Constitution, A Compact
How the character, shape and form of the American government would take form was
subsumed in the constitutional debates of 1787-1790.28
This question of how the constitutional
system would take form was not adequately settled in the minds of Americans. Disagreement
over the meaning and character of American political associations has lingered since ratification.
From whence came its authority? From the sovereign states? From the nation? From the
people? In the 1790s, centralizing nationalist arguments and decentralizing states‘ rights
arguments were put forward to describe the nature of federal authority. These discussions
reverberated as hostilities broke out between the U.S. and Great Britain in the War of 1812. The
echoes of the controversy could be felt in the tariff crisis of the 1820s and 1830s. This contest
resounded in the years leading up to the climactic rupture of the Union in 1861.29
As Calhoun rhetorically inquired, ―Is this a federal union? A union of States, as distinct
from that of individuals? Is the sovereignty in the several states, as distinct from that of
individuals? Is the sovereignty in the several States, or in the American people in aggregate?‖30
One may ascertain that the Constitution is a compact as the people of the several States in their
28
Woodrow Wilson, Constitutional Government in the United States (New York, NY: Columbia Univ.
Press, 1917, repr. New Brunswick, NJ: Transaction Pub., 2001), 173; Robert A. Goodwin and William A.
Schambra, eds., How Federal is the Constitution? (Washington, DC: American Enterprise Institute for Public Policy
Research), xiii. ―The question of the relation of the States to the Federal government is the cardinal question of our
constitutional system.‖
29
Frohnen, ed., 381. ―The term ‗United States,‘ which always means, in constitutional language, the several
states in their confederated character, means also, as has been shown when applied geographically, the country
occupied and possessed by them‖; Warren L. McFerran, Political Sovereignty: The Supreme Authority in the United
States (Sanford, FL: Southern Liberty Press, 2005), 14, ―[There are] two great opposing schools in the United States
– the Consolidating School of Thought and the States' Rights School of Thought – during the antebellum period of
our history . . . [I]t was the former school that posed the primary threat to the sovereignty of the people, by
advocating unconstitutional centralization of all powers in the Government of the United States and the transfer of
sovereignty to that government. The latter school . . . championed the cause of the sovereignty of the people by
defending the rights of the States and the constitutionally prescribed limits to the powers of the Federal
Government.‖
30
John C. Calhoun, ―Speech on the Force Bill,‖ John C. Calhoun: Selected Writings and Speeches, H.L.
Cheek, Jr. ed. (Washington, DC: Regnery Pub., 2003), 291; Kevin Gutzman, The Politically Incorrect Guide to the
Constitution (Washington, DC: Regnery Pub., 2007), 45-47. Features a section querying, ―Who ratified the
Constitution: ‗The American people‘ or the sovereign states?‖
13. Setliff 9
sovereign capacities are parties to this compact. ―The Constitution now before the public, is not
a compact between individuals, but between several sovereign and independent political societies
already formed and organized,‖ declared one Federalist writer.31
Madison, in his Report of
1800, wrote, ―The [Constitution] was formed by the sanction of the states, given each in its
sovereign capacity. It adds to the stability and dignity, as well as to the authority of the
Constitution, that it rests on this legitimate and solid foundation.‖32
Here states‘ rights and
popular sovereignty were inseparably declared the bedrock of the constitutional union.
Donald Livingston expounded upon the compact theory of the Union with depth and
clarity, which points to the realization that each state is ―a sovereign political society.‖33
First,
he noted the states created the general government as their agent, endowing it with a limited
delegation of enumerated powers—primarily on matters of defense, regulation of commerce, and
foreign treaties. Second, this government (including its supreme court) cannot have finality as to
what powers the states delegated and reserved as the federal government is the agent and the
states are principals. Third, if an act of the agent exceeds the scope of delegated powers, then a
state may interpose its authority to pronounce such an act null and void. Livingston concluded,
―any federal system that is serious about protecting moral communities of its constituent units
must allow some form of state, provincial, or cantonal resistance.‖34
He suggested it was more a
reality of political practice at the time than mere theory.35
31
Herbert J. Storing, Toward A More Perfect Union: Writings of Herbert J. Storing, Joseph M. Bessette,
ed. (Washington, DC: American Enterprise Institute, 1995), 84
32
James Madison, ―Report of the Virginia House of Delegates,‖ 1800, The American Republic: Primary
Sources, Bruce Frohnen, ed. (Indianapolis: Liberty Fund, 2002), 409.
33
Livingston, ―The Founding and the Enlightenment,‖ Gary L. Gregg II, ed., 255-256. Livingston is a
professor of philosophy at Emory University, and is a respected authority on American political philosophy.
34
Ibid.
35
Ibid., 261; Donald Livingston, ―Abel Parker Upshur‘s A View of the Constitution of the United States of
America,‖ Audio Resource. (Seabrook, SC: Abbeville Institute, 2004); Dumas Malone quoted in Watkins,
Reclaiming the American Revolution, 59; Edward S. Corwin, National Supremacy: Treaty Power vs. State Power
14. Setliff 10
The Union had formed by the voluntary agreement of the states, according to Alexis de
Tocqueville, the author of Democracy in America, and in so doing, the states did not forfeit their
nationality, and he further held that it would be difficult to disprove their right to secede given
the contractual nature of the Union.36
In 1812, Rhode Island declared the people of their State to
be ―one of the parties to the federal compact.‖37
In 1827, South Carolina dubbed the
Constitution a compact.38
In 1852, New Jersey described the Constitution ―a compact among the
several states.‖39
In 1859, Wisconsin described the Constitution as a compact, and begged the
propriety of identifying infractions of it and acting as the determiner of the ―mode and means of
redress.‖40
And it was in Richmond at the Virginia Convention of 1788, that Madison observed
―the people‖ ratified the Constitution, ―but not the people as composing one great body; but the
people composing thirteen sovereignties.‖41
This compact understanding of the Union gave
republicans intellectual ammunition in their effort to legitimize the authority of state
interposition. Accordingly the states as parties to the compact may justly interpose against
trespasses upon their reserved rights under the Tenth Amendment to the U.S. Constitution.
(New York, NY, Henry Holt, 1913), 102. ―[T]he doctrine that the Constitution was a compact of sovereign States
moved forward to the high plane of the axiomatic in the popular consciousness.‖
36
Alexis de Tocqueville, Democracy in America (New York: Vintage Books, 1990), 1:387-88.
37
Peter Zavodnyik, The Age of Strict Construction: A History of the Growth of Federal Power
(Washington, DC: The Catholic Univ. of America Press, 2007), 174.
38
Ibid.
39
Ibid.
40
Ibid.
41
James Madison quoted in M. Stanton Evans, ―The States and the Constitution,‖ Arguing Conservatism:
Four Decades of the Intercollegiate Review, Mark Henrie, ed. (Wilmington, DE: ISI Books, 2008), 171.
15. Setliff 11
Chapter One
Antecedents
The tenets of the Virginia and Kentucky Resolutions were not blanket innovations of
distraught minds, but rather they stood in continuity with a broader colonial-revolutionary
tradition. This tradition stressed the primacy of the local community, and the legitimacy of the
interposition of lesser magistrates and officers on behalf of the liberties of the people to arrest the
usurpations of a remote government.1
The Principles of 1798 stand in continuity with the
Principles of 1776. With this in mind, it is beneficial to examine the antecedents of the
American states‟ rights tradition, in particular the great constitutional struggles.
In the New World, colonists came from many European lands at various intervals in time.
English settlers led by John Smith landed at Jamestown in 1607. Other seafarers aboard the
Mayflower landed at Plymouth Rock in 1620. They brought with them—a common culture,
ideals, heritage, and religious beliefs.2
As partakers of the English spirit of localism, colonists
were habituated to self-government by geography, circumstance and custom. In August 1619,
the Virginia Company authorized the newfound Commonwealth to set up an elected House of
Burgesses, along with an appointed council, in order “to make and ordain whatsoever laws
should by them be thought good and profitable for our subsistence.”3
Even when James I
suspended the Virginia Company‟s charter, the representatives of the colony continued to meet
on a regular basis for years. As Charles I ruled arbitrarily by decree in England after he
1
McClellan, Liberty, Order, and Justice, 33.
2
Michael Allen and Larry Schweikart, A Patriot’s History of the United States (New York, NY: Sentinel
Books, 2004), 27-31; Greenfield, Liah, Nationalism: 5 Roads to Modernity (Cambridge, MA: Harvard Univ. Press,
1992), 411-412; Samuel Elliot Morison, William Edward Leuchtenburg and Henry Steele Commager, The Growth
of the American Republic, 2 Vols., 6th Ed. (New York, NY: Oxford Univ. Press, 1969), 1:38-59.
3
Bruce Frohnen, “Revolutions Not Made, But Prevented, 1776, 1688, and the Triumph of the Old Whigs,”
Gary L. Gregg, II., ed., 281-283; Evans, The Theme is Freedom, 208-217, viz. 212-213.
16. Setliff 12
suspended Parliament, the General Assembly of Virginia still met in formalized annual meetings.
Virginia warmly petitioned the King, and asked that he not reinstate a charter company over her
domain again, but rather to continue Virginia under charter as a Royal Colony dependent upon
the Crown. Virginians like other colonists were acclimated to self-government. They came to
correlate this prerogative with the grace and protection of the Crown.4
Americans, in the exercise of self-government, looked first to their communities or
townships, then to the colonial governments, and only rarely in common matters, such as
defense, beyond their borders.5
The states‟ rights tradition has a longer pedigree than those of
the more modern nationalist tradition.6
British North America began not as a single continent-
wide political entity but remained a conglomerate of distinct colonies, founded at varying
junctures in time, each possessing an individual character and history. In the years after the
French and Indian War, colonial assemblies lead the way in protecting their citizens from
perceived abuses by Crown-in-Parliament. They launched protests, organized comprehensive
plans of resistance when abuses proved deleterious to their liberty.7
In the mid-eighteenth century, America consisted of thirteen colonies. Connecticut and
4
Ibid.
5
The American Republic: Primary Sources, Bruce Frohnen, ed., 299.
6
Akhil Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale Univ. Press, 1998),
p. 5. “The foundation of states‟-rights traditions are even older than those of the nationalist tradition—indeed, older
than the Union itself. In the seventeenth century, British, North America began not as a single continent-wide
juridicial entity but a series of different and distinct colonies, each founded at a different moment with a distinct
character, a distinct history, a distinct immigration pattern, a distinct set of laws and legal institutions, and so on. In
1780s, „Virginia‟ was, legally speaking, an obvious fiat accompli—its House of Burgesses had meetings since the
1620s—but America, as a legal entity, was still waiting to be born. During the fateful years between the end of the
French and Indian War and the beginning of the Revolutionary one, colonial governments took the lead in protecting
their citizens from perceived Parliamentary abuses. Colonial legislatures kept a close eye on the central
government, sounded public alarms whenever they saw oppression in the works; and organized political, economic,
and (ultimately) military opposition to perceived British evils. The rallying cry of the Revolution nicely illustrates
how states‟ rights and citizens‟ rights were seen as complimentary rather than conflicting. No taxation without
representation sounds in terms of both federalism and the rights of Englishmen.”; Andrew C. McLaughlin, “The
Background of American Federalism,” 12 Am. Pol. Sci. Rev. 215, 222 (1918). The McLaughlin piece argued how
states‟ rights and individual rights were subsumed one in the other during the colonial struggles against Parliament.
7
Ibid.
17. Setliff 13
Rhode Island were corporations chartered by the Crown. Pennsylvania, Delaware, and
Maryland, were considered “proprietary colonies” helmed by leaders such as William Penn and
Charles Calvert under Crown charter. Other colonies originated in either direct or derivative
grants of corporate or proprietary charters. The royal colonies typically were ruled by the Crown
through appointed governors and judges and legislatures authorized by the Crown.8
These charters served as memorials which colonials could appeal to when the Crown‟s
abuses of power threatened the historic rights of colonists. They established a precedent of self-
government that was practiced day-to-day in their communities and colonial assemblies.9
The
charter of Virginia said that subjects dwelling there “shall have and enjoy all liberties, franchises
and communities… as if they had been abiding and born within this realm of England.”10
The
Massachusetts charter stated there should be “laws not contrary to the laws and statues of
England.”11
Next, it is helpful to examine the Anglo-American political tradition. It has been trendy
to interpret constitutional events backward, tracing the annals retrospectively from our time back
to 1763 or the 1770s, instead of forward from the time of the ancient Saxon constitution and the
Magna Charta. The English experience guided and informed the American colonial-
revolutionary experience. To appreciate the significance of 1776 and 1798, it merits
recollections from the pivotal English constitutional struggles in order to contextualize the
doctrines of nullification and states‟ rights.12
Nationalist historiography emphasizes the
8
Forrest McDonald, Constitutional History of the United States (New York, NY: Franklin Watts, 1982),
11.
9
John Phillip Reid, The Authority of Rights: Constitutional History of the American Revolution (Madison,
WI: Univ. of Wisconsin Press, 1986), 32, 66, 70, 72, 78, 91, 92, 100, 139, 142, 152, 159-160, 162-168, 199, 202,
203, 210, 214, 222, 225, 230.
10
Evans, The Theme is Freedom, 209.
11
Ibid.
12
M.E. Bradford, Original Intentions: On the Making and Ratification of the United States Constitution
(Athens, GA: Univ. of Ga. Press, 1993), 18.
18. Setliff 14
innovation and radicalness of the Revolution, and its adherents dismiss the colonial antecedents
of states‟ rights, which weakens the continuance of an Anglo-American constitutionalism; and
such efforts hold the adoption of the Constitution as tantamount to the zeroing of the calendar.13
On 15 June 1215, on the field of Runnymede, King John was compelled to sign the
Magna Charta at the behest of barons, bishops, and “the lower magistrates” or face their armed
resistance. It consisted of a preamble and sixty-three clauses that bound the king to observe the
established rights and liberties of noblemen. It was a protracted catalogue of legal protections
against arbitrary rule, legal rights, guarantees of religious liberty, taxation by consent, and so on.
The Magna Charta emerged as a safeguard against arbitrary rule.14
English noblemen appealed
to customary practice rooted in the common law, such as the right to be tried for crimes by a jury
of peers and the right to be taxed only with the consent of one‟s representatives. The monarch
was expected by custom to exhibit fealty to these practices and institutions, which became the
root of the English constitutional order. The Saxon constitution did not countenance absolutism
in the monarchy, and its lineaments were reaffirmed in spite of the Norman invasion by William
the Conqueror.15
In 1256, jurist Henri de Bracton wrote, “the king must not be under man but
God and under the law, because law makes the king… Let the king therefore bestow upon the
law what the law bestows upon him, namely, rule and power for there is no king where his will
rules rather than law.”16
Starting in sixteenth century England, and among continental Protestant Reformers, a
13
Marshall DeRosa, “M.E. Bradford‟s Constitutional Theory,” A Defender of Southern Conservatism: M.E.
Bradford and His Achievements, Clyde N. Wilson, ed. (Columbia, MO: Univ. of Missouri Press), 101. “The
American rule of law has a continuity that predates the drafting of the Constitution and can be traced to colonial
America.”
14
James Clarke Holt, Magna Charta (Cambridge, UK: Cambridge Univ. Press, 1992), 1-22.
15
Ibid.
16
Henry de Bracton, On the Laws and Customs of England, Samuel Thorne, ed. (Cambridge, MA: Harvard
Univ. Press, 1968), 33.
19. Setliff 15
momentous rally transpired against the civil and ecclesiastical structures dominated by the
Roman Catholic Church. These Reformers set a precedent for interposition of the lesser civil
magistrates against the perceived corruption of kings and executives on behalf of their religious
liberty. The teachings of Reformer John Calvin on the duty of the citizen toward an unjust
magistrate was premised on the admonition of the Apostle Paul in Romans 13 to be obedient “to
the higher powers” ordained of God. This admonition seems to all but preclude resistance.
Calvin‟s Institutes left a conduit for sensible resistance to a corrupt body politic.17
First, he
denied the right of individuals to take the law into their own hands by vengeance against corrupt
officials. Second, the people may appoint and bid “popular magistrates… to curb the tyranny of
kings.” Calvin asserted the right, and indeed the duty, of lesser magistrates to interpose their
authority between a wicked ruler and the people. They may take appropriate action to restrain or
conceivably even depose him. These representatives of the people have a duty to “restrain the
willfulness of kings,” even if it means they must “overturn… their intolerable governments.”18
These ideas were well-received by the English Puritans. As many sought refuge in Calvin‟s
Geneva from James II and Charles I, the Reformation ideas of the continent steadily cross-
pollinated on the British Isles and in her American colonies.19
17
Douglas F. Kelly, The Emergence of Liberty in the Modern World; The Influence of Calvin on Five
Governments from the 16th
Through the 18th
Centuries (Phillipsburg, NJ: Presbyterian and Reformed Publishing,
1992), 29-31. “For if there are now any magistrates of the people appointed to restrain the willfulness of kings (as in
ancient times the ephors set against the Spartan kings, or the tribunes of the people against the Roman consuls, or
the demarchs against the senate of the Athenians; and perhaps, as things now are, such power as three estates
exercise in ever realm when they hold their chief assemblies,) I am so far from forbidding them to withstand, in
accordance with their duty, the fierce licentiousness of kings, that, if they wink at kings who violently fall upon and
assault the common folk, I declare their dissimulation involves nefarious perfidy, because they dishonestly betray
the freedom of the people, of which they know that they have been appointed protectors by God‟s ordinance.”
18
Kelly, The Emergence of Liberty in the Modern World, 29-30; Gary T. Amos, Defending the Declaration
(Charlottesville, VA: Providence Foundation, 1999), 136.
19
John Eidsmore, Christianity and the Constitution: The Faith of our Founding Fathers (Grand Rapids,
MI: Baker Academic, 1987), 18-19. George Bancroft, the famed 19th
-century historian, surmised that Calvin was
“the father of America,” adding, “He who will not honor the memory and respect the influence of Calvin knows but
little of the origin of American liberty.” The German historian Ranke dubbed, “John Calvin… the virtual founder of
America.”
20. Setliff 16
In 1628, in the Petition of Right, King James I bound himself from the exercise of
arbitrary and illicit power. He pledged never again to imprison any person except by due process
of law, to circumvent the judicial processes of regular courts through the imposition of military
tribunals, to quarter soldiers in private homes without the consent of the owner, or to raise money
without again the consent of Parliament. Later the Crown would assert an exception concerning
the limits on the power of taxation, claiming the right to issue special writs sanctioning tax levies
in times of emergency. Charles I then issued a writ in 1636 in violation of the Petition of Right.
Many declined to pay the tax, declaring it illegal since it was a tax levied without the consent of
Parliament. John Hampden, a member of the House of Commons, challenged the arbitrary rule
of the Crown. In the 1637 Ship Money Case, Hampden was tried for refusing to pay the sum of
twenty shillings assessed upon his land, and he claimed in defense that the Crown had no
authority for levying such a tax. He lost his case, but the judges‟ decision was later omitted from
legal standing. Hampden became a popular symbol of the defiance of arbitrary power, and his
defiance helped the Petition of Right gain stature. Word of his case spread. Later American
lawyers in the 1760s and 1770s would cite the Ship Money Case and the Petition of Right to
legitimize their opposition to Parliamentary abuses.20
In 1644, a renowned Scottish Presbyterian minister Samuel Rutherford wrote his famous
treatise Lex Rex, translated „Law is King.‟ He made a philosophical case against the imagined
divine right of kings and their supposed infallibility. Rutherford‟s argument weighed on the
integral notions of compact, condition and material breach. He explained that a ruler obtains his
office by entering into a compact with the people that entails an exchange of promises whereby
the people oblige themselves to allegiance and obedience to the law; and in turn, the ruler
20
McClellan, Liberty Order, and Justice, 39-41; Michael Mendle, “The Ship Money Case, The Case of
Ship money, and the Development of Henry Parker's Parliamentary Absolutism,” The Historical Journal, Vol. 32,
No. 3 (Sep., 1989), 513-536.
21. Setliff 17
promises to rule for their well-being within the constraints of natural law. The compact is thus
conditional, and if the ruler fails to live up to his pledge then he may forfeit his right to rule.21
As the common law is deducible by reference to natural law and set by convention, rather than
legislative contrivance, colonists were quick to ascertain and decry royal abuses. Lex Rex
saturated the minds of many colonists, and they in turn decried abrogation of historical rights,
and regarded such acts as null and void.
The Glorious Revolution proved to be the culmination of English constitutional struggles.
In the seventeenth century, English liberty had been threatened by the despotism of the Stuart
kings who attempted to graft a divine-right monarchy onto the English body politic. This ran
counter to constitutional norms. James II, a convert to Roman Catholicism, acceded to the
throne in 1685. Thus the Puritan Parliamentarians were natural antagonists to James II. There
were fears that James II would unite with the Catholic Bourbon monarchs such as Louis XIV of
France. Encouraged by English Protestants, the Stadtholder of the Netherlands, William of
Orange, then landed in England assembling an army. James II fled England, abdicating his
throne, as William acceded to power with the consent of Parliament. In 1689, the Bill of Rights
was enacted by Parliament, and stated the liberties of the English, and solidified the gains made
in 1688.22
Earlier James II had decided to reorganize colonial administration on his own initiative.
He eliminated representative institutions in New England, and centralized rule under Crown
21
McClellan, Liberty Order, and Justice, 24-25; David Van Drunen, Natural Law and the Two Kingdoms:
A Study in the Development of Reformed Social Thought (Grand Rapids, MI: Wm. B. Eerdmans), 145-148; Gary T.
Amos, Defending the Declaration (Charlottesville, VA: Providence Foundation, 1999), 140-141; Samuel
Rutherford, Lex Rex, or The Law and the Prince: A Dispute for the Just Perogative of King and People, (1644;
reprint Harrisonburg, VA: Sprinkle Pub., 1982).
22
Frohnen, Vital Remnants: America’s Founding and the Western Tradition, Gary L. Gregg II, ed.
(Wilmington, DE: ISI Books, 1999), 2; Michael Barone, Our First Revolution: The Remarkable British Upheaval
That Inspired America’s Founding Fathers (New York, NY: Crown Publishers, 2007).
22. Setliff 18
appointee Sir Edmund Andros. He violated established constitutional norms and the sanctity of
contract by revoking the charters of all the New England and Middle colonies. He sought to
wipe out colonial boundaries in New England. Andros ordered the suspension of colonial
assemblies and forbade town meetings, attempted to levy taxes without the people‟s consent, and
announced his personal command over local militias. James II‟s plan brought upheaval. In
reality, Andros remained isolated in Boston, and ignored by the interposition of local leaders
who rebuffed his edicts. On 4 April 1689, word reached Boston that William of Orange had
deposed King James II, and “all magistrates who have been unjustly turned out” should resume
“their former employment.” Colonists gleefully reacted and civilly deposed Andros from power.
Cotton Mather drew up a new charter, rescinded the centralized „Dominion of New England’;
and restored colonial self-rule.23
These, and other, struggles for liberty set the groundwork for the colonial-revolutionary
resistance to the tyranny of King George III in the 1770‟s. Colonial inhabitants of British North
America were mindful of the English constitutional struggles from the time of Magna Charta.
They were aware of the tyranny of Stuart monarchs, the ousting of Charles II, the protectorate of
Cromwell, the short-lived restoration of James II, and the Revolution of 1688. The deposed were
deemed the “rebels” who had “unkinged” themselves by assuming the role of usurper.24
Reed
wrote, “and all the principles of the [Glorious] Revolution show that there are certain cases
23
Allen and Schweikart, A Patriot’s History of the United States, 36; Frohnen, “Revolutions Not Made,
But Prevented, 1776, 1688, and the Triumph of the Old Whigs,” Vital Remnants, Gary L. Gregg II, ed., 290; David
S. Lovejoy, The Glorious Revolution in America (New York, NY: Harper & Row, 1972), 178; W. Kirk Wood,
Nullification: A Constitutional History, 2 Vols., James Madison, Not the Father of the Constitution (Lanham, MD:
Univ. Press of America, 2008), 1:14; Thomas E. Woods, Jr., The Politically Incorrect Guide to American History
(Washington, DC: Regnery Pub., 2004), 10.
24
Pauline Maier, From Resistance to Revolution: Colonial Radicals and the development of American
opposition to Britain, 1765-1776 (New York, NY: W.W. Norton), 40-41. Lord Somers wrote, “They are the traitors
who design and pursue the Subversion of [the constitution]; they are the rebels that go about to overthrow the
Government of their Country, whereas [those who] seek to Support and defend it are the truly loyal Persons.”
23. Setliff 19
wherein resistance is justifiable to him [the king].”25
Blackstone acknowledged that from 1688
“a new era commenced, in which the bounds of prerogative have been better defined, the
principles of government more thoroughly examined and understood, and the rights of the
subject more explicitly guarded by legal provisions, than in any other period of English
history.”26
Willi Paul Adams highlighted the significance of Americans appropriating an
essentially English constitutionalism to vindicate their resistance, (and that tradition lingered on
after 1776 and the peace of 1783.) A key premise of the colonists‟ argument was the notion that
the political order of 1688, codified in statutes, could not be altered even by a majority decision
of Parliament. This constitution, they argued, constituted a permanent code to which the Crown
and Parliament were subject, and they had no authority to alter.27
The Act of Settlement reconfigured the locus of sovereignty within the English system,
removing it from the Crown and placing it in „the Crown-in-Parliament.‟ Thereafter the
Parliament politically dominated Great Britain. This transformation in 1688 propagated the
germ of the later 1776 Revolution. The colonies were afforded autonomy and had their own
representative assemblies. They regarded the Crown as the grantor of their charters.28
“The
fundamental principle of the [American] revolution was, that the colonies were coordinate
25
Reed, The Authority of Rights, 234.
26
William Blackstone quoted in James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes,
and the Origins of American Constitutionalism (Lawrence, KN: Univ. Press of Kansas, 1992), 169.
27
Willi P. Adams quoted in M.E. Bradford, Original Intentions: On the Making and Ratification of the
United States Constitution (Athens, GA: Univ. of Ga. Press, 1993), 26; Willi P. Adams, The First American
Constitutions: Republican Ideology and the Making of the Revolutionary Era, 2nd
Ed. (Lanham, MD: Rowman &
Littlefield, 1973, 1980), 16.
28
Michael Barone, Our First Revolution: The Remarkable British Upheaval That Inspired America’s
Founding Fathers (New York, NY: Crown Publishers, 2007), 1-8; Watkins, Reclaiming the American Revolution,
xiii; Akhil Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale Univ. Press, 1998), 109.
“The Glorious Revolution had also ushered in an era of Parliamentary supremacy, but once again, Americans did not
really benefit. They could not vote for Parliament, and that body could trump the acts by the colonial legislatures
that could vote for. This was another large theme of the Declaration of Independence, which denounced
Parliament‟s „pretended legislation‟ and assertions of „unwarrantable jurisdiction.‟”; John R. Graham, A
Constitutional History of Secession (Gretna, LA: Pelican Pub. Co., 2002), 74; Stanley N. Katz, “A Revolutionary
Interpretation,” Beyond Confederation: Origins of the Constitution and American National Identity (Chapel Hill,
NC: Univ. of North Carolina Press, 1987), 35.
24. Setliff 20
members with each other, and with Great Britain, of an empire united by a common executive
sovereign,” wrote James Madison in his Report of 1800, “but not united by any common
legislative sovereign. The legislative power was to be maintained as complete in each American
Parliament, as in the British Parliament… A denial of these principles by Great Britain, and the
assertion of them in America, produced the revolution.”29
Colonials thought of themselves as more connected to the Crown than Parliament. They
had an established tradition of their own representative assemblies that mirrored the authority of
Parliament in England since the 1600s. They denied the authority of any legislature superior to
their colonial assemblies, and this became the raison d'être for 1776. Imperialists in Parliament
may have denied their right to rule arbitrarily after the 1760s, but Americans were habituated to
self-government and jealous for their liberties. The earliest settlements had received their
charters from the Crown, and by inference, they owed no allegiance to Parliament. For this
reason, their petitions were addressed to the King. By custom, colonial assemblies had alone
exercised the power of taxation, hence the revolutionary slogan, „no taxation without
representation.‟ Nearly every colonial-revolutionary treatises reflected this common theme:
John Dickinson in the Pennsylvania Farmer, Richard Bland in his Inquiry into the Rights of
British Colonies, John Adams in Novanglus, Thomas Jefferson in A Summary View of the Rights
of British America, and James Wilson in his Considerations on the Authority of Parliament.30
Leading up to 1776, the colonial magistrates resisted the usurpations of Parliament by
solemn protest, establishing committees of correspondence between the colonies to establish a
mode of protest and resistance. In 1805, Mercy Otis Warren, in her History of the Rise and
29
James Madison, “Report of the Virginia House of Delegates,” The American Republic: Primary Sources,
Bruce Frohnen, ed., 419; Watkins, Reclaiming the American Revolution, 192n.
30
Evans, The Theme is Freedom, 211; Merrill Jenson, The Articles of Confederation (Madison, WI: Univ.
of Wisconsin Press, 1959), 103, 211,214, 221.
25. Setliff 21
Progress and Termination of the American Revolution, stated, “Perhaps no single step
contributed so much to cement the union of the colonies, and the final acquisition of
independence, as the establishment of the Committees of Correspondence… that produce
unanimity and energy throughout the continent.”31
The propriety of these Committees of
Correspondence would later be lauded in Hamilton‟s Federalist #28 in describing the probable
operation of state interposition to perceived encroachments upon liberty.32
Through committees,
patriots spread the word about encroachments upon the public liberty and drew up concerted
plans for resistance. So called Writs of Assistance proved to be a major affront to colonial
liberties. These general search warrants gave British customs officers free reign to ransack and
invade homes and offices in search of alleged contraband.33
Memory of these odious writs
lingered in the minds of post-1783 Americans and the authors of the Virginia and Kentucky
Resolutions. On occasion, colonial leaders interposed their authority to arrest perceived
encroachments by Parliament upon the charters and the rights of English subjects. This marked
the inauguration of a colonial-revolutionary tradition of corporate resistance by lesser
magistrates and officers to thwart perceived Tory tyranny, and this tradition would define the
American political culture after the United States secured independence.34
Prior to their assertion of independence, the colonies fell under the supervisory
jurisdiction of the King‟s privy council, and were also subject to the general regulations of
31
Mercy Otis Warren, History of the Rise, Progress, and Termination of the American Revolution (Boston,
MA: Manning and Loring, 1805), Vol. 1, 109; Mercy Otis Warren quoted in Eve Kornfeld, Creating an American
Culture, 1775-1800: A Brief History with Documents (New York, NY: Palgrave MacMillan, 2001), 171.
32
Alexander Hamilton, “Federalist #28,” The Federalist Papers, Benjamin F. Wright, ed. (New York, NY:
Barnes and Noble Books, 1996), 225.
33
Ibid.
34
Thomas E. Woods, Jr., Nullification: How to Resist Federal Tyranny in the Twenty-First Century
(Washington, DC: Regnery Pub. 2010), .
26. Setliff 22
Parliament.35
In the fifteenth article of the Charter of King James I, the Crown promised its
subjects:
Also we do, for us, our heirs and successors, declare, by these presents, that all
and every persons, being our subjects, which shall dwell and inhabit within every
or any of the said several colonies and plantations, and every and of their children,
which shall happen to be born within any of the limits and precincts of the said
several colonies and plantations, shall have and enjoy all liberties, franchises, and
immunities, within any of our other dominions, to all intents and purposes, as if
they had been abiding and born, within this our realm of England, or any of our
said dominions.36
This charter embodied the Crown‟s formal acknowledgement of colonial liberties. The
colonists did not presuppose that mere enumeration of overt acts of misgovernment were the sole
vindicator of their corporate acts of resistance to Crown-in-Parliament. Rather they strove to
garner legitimacy for their grievances by appealing to the normative authority of their colonial
charters that embodied a broad English constitutionalism since the time of the Magna Carta.37
A Long Train of Abuses and Usurpations
No modern revolution was so deeply rooted in an aversion to over-taxation and over-
regulation as the revolt of the thirteen American colonies. Perceiving mercantile regulations as
unjust, merchants had consciously evaded taxes. Merchant John Hancock, earned repute as one
of the colonies‟ most notorious smugglers. One of his ships docked in Boston Harbor was
loaded with a cargo of Madeira wine. Its customs manifest listed only a few cases. When an
officer boarded the ship for inspection, the crew locked him in a cabin, and he could hear the
chiming of wine bottles being unloaded by dock workers. Upon release three hours later, the
35
John Andrew Doyle, English Colonies in America: Virginia, Maryland and the Carolinas (New York,
NY: Henry Holt, 1882), 179.
36
Jon L. Wakelyn, ed., America's Founding Charters: Primary Documents of Colonial and Revolutionary
Era Governance (Westport, CT: Greenwood Press, 2006), 36; Graham, A Constitutional History of Secession, 74.
37
Bruce Frohnen, “Revolutions, Not Made, But Prevented, 1776, 1688, and the Triumph of the Old
Whigs,” Vital Remnants, 279, 289-290, 297.
27. Setliff 23
crew shrugged it off as a mishap.38
Resistance of this sort occurred during the 1760s and 1770s.
In 1733, Parliament enacted the infamous Sugar Act in order to help the British West
Indies at the expense of British North America, whereby trade between British North America
and the French West Indies became unlawful, in favor of the British-administered islands. A
labyrinth of mercantile regulations entangled importers. Personal effects of seaman were
subjected to arbitrary seizure if the contents were not declared on a customs declaration. Tax
litigation moved to Admiralty courts in loyalist strongholds such as Nova Scotia. Litigants were
denied the right to a public trial by a jury of their peers. Civil actions against taxmen were
forbidden, and informants could lay claim to one-third of a smuggler‟s cargo.39
In 1761, British magistrates made application to Massachusetts courts for writs of
assistance, which were summarily issued. This writ was similar to a search warrant, but much
broader in scope. Unlike a traditional search warrant, it did not require that the place to be
searched even be named, or that the goods to be seized were to be specified, and it had no fixed
date of expiration. This carte blanche for officers of state to engage in search and seizure at their
discretion proved detrimental to liberty and stood in direct contradiction to the longstanding
Rights of Englishmen.40
In much the same way statutes today have innocuous titles, the statute
that gave Writs of Assistance the color of law, in the title “An Act to prevent frauds, and
regulating abuses in His Majesty‟s customs.” The fifth section made reference to prohibited
goods on vessels and at port that had not passed customs, making provision for their seizure.41
38
Charles Adams, Those Dirty Rotten Taxes: The Tax Revolts That Built America (New York, NY: 1998),
28-20; John Roy Musick, John Hancock: A Character Sketch (Chicago, IL: Univ. Association), 35-36.
39
James Kendall Hosmer, Samuel Adams (New York, NY: Houghton Mifflin, 1913), 28-29.
40
Reid, The Authority of Rights, 196-198, 206.
41
William Tudor, The Life of James Otis, of Massachusetts (Boston, MA: Wells and Lilly, 1823), 78-79.
The Act provided, “it shall be lawful to or for, any person or persons, authorized by these writs of assistance under
the seal of His Majesty‟s Court of the Exchequer, to take constable, headborough, or other public officer, inhabiting
near unto the place, and in the day time enter, and go into any house, shop, warehouse, cellar, or room, or other
28. Setliff 24
James Otis, a prominent attorney in Massachusetts on behalf of the Boston Merchant‟s
Association emerged to decry these instruments as unconstitutional attacks on the public liberty.
He went before the court in the old townhouse in Boston to argue against the issuance of these
writs. He maintained that Parliament had no right to authorize customs officials to issue general
search warrants without naming any persons. He cited the absence of precedent and the lack of
authority in the colonial charter. He held that the writs were contrary to evident reason and
arbitrary and tyrannical by nature. Otis assailed the writs as “an act against the Constitution is
void… if an act of Parliament should be made, in the very words of the petition [for writs of
assistance], it would be void; the executive courts must pass such acts into disuse.” The
traditional common law approach had been supplanted by Hobbessian notions of unbounded
legislative power vested in Crown-in-Parliament. The colonists were apt to maintain the
traditional outlook in defense of their liberties.42
They could find precedent in Dr. Bonham’s
Case (1610). Jurist Sir Edward Coke maintained that the common law circumscribed the acts of
Parliament—which proved useful to Otis in his case.43
Otis stated, “Every one with this writ
may be a tyrant; if this commission be legal, a tyrant in a legal manner also may control,
imprison, or murder any one within the realm…. Every man may reign secure in his petty
tyranny, and spread terror and desolation around him.” Then he defiantly proclaimed his
opposition to such Writs, and dubbed “all such instruments of slavery on the one hand, and
place; and in the case of resistance, to break open doors, chests, trunks, and other packages, there to seize and thince
bring any goods and merchandise whatsoever prohibited and unaccustomed, and to put and secure the same in His
Majesty‟s storehouse in the port next to the place where such seizure shall be made.”
42
Evans, The Theme is Freedom, 223; Oliver M. Dickerson, The Navigation Acts and the American
Revolution (Philadelphia, PA: Univ. of Penn. Press, 1951); Thomas R. Dye, American Federalism: Competition
Among Governments (Lexington, MA: Lexington Books, 1990). “All governments… are dangerous. They wield
coercive power over the whole of society. They tax, penalize, punish, limit, confine, order, direct, and regulate.
They seize property, restrict freedom, and even take lives, all under the claim of legitimacy . . . Thomas Hobbes
justified the creation of such a dangerous institution by arguing that it was the only alternative to anarchy—a war of
all against all, „where every man is enemy to every man‟ and life is „solitary, poor, nasty, brutish and short.‟ Only
the „continual fear and danger of violent death‟ justified the establishment of a Leviathan.”
43
McClellan, Liberty, Order, and Justice, 33; Stoner, Common Law and Liberal Theory: Coke, Hobbes,
and the Origins of American Constitutionalism, 13-14, 48-62, 190, 229-231.
29. Setliff 25
villainy on the other, as this writ of assistance is.”44
Otis did not prevail in this particular case
before the court, but a powerful precedent had been struck.
The arbitrary nature of the Writs of Assistance provoked further protest and resistance.
Essentially open-ended, self-written search warrants that allowed officials to demand entrance by
force, in effect, it deputized British soldiers and officers with nearly limitless discretion to search
private buildings and effects ostensibly for smuggled goods. It made no provision for judicial
oversight or the irregularity of the warrants.45
After 1776 the memory of these devices
compelled the revolutionary governments to craft their own Bill of Rights. The reminiscence
inspired the framers of the 1791 federal Bill of Rights to make provision for safeguards against
illegal search and seizure. To the generation of „76, the thought of government officers being
able to write their own warrants was abhorrent and unlawful.46
Massachusetts men were at the forefront of the resistance to the Crown‟s taxes.
Instructions were prepared on 24 May 1764, for Boston‟s representatives in Assembly:
But what still heightens our Apprehensions is that those unexpected proceedings
may be preparatory to new Taxations upon us: For if our Trade may be taxed why
not our Lands? Why not the produce of every Thing we possess or make use of?
This we apprehend annihilates our Charter Right to Govern and Tax ourselves.—
It strikes at our British Privileges which as we have never forfeited them we hold
in common with our Fellow Subjects who are Natives of Britain: If Taxes are laid
upon us in any shape without ever having a Legal Representative where they are
laid, are we not reduced from the Character of Free subjects to the miserable state
of Tributary Slaves?47
But these acts marked the beginning of a long series of calculated oppressions, which
44
Scott J. Hammond, Kevin R. Hardwick, Howard L. Lubert, eds., Classics of American Political and
Constitutional Thought: Origins Through the Civil War, 2 Vols. (Indianapolis, IN: Hackett Pub., 2007), Vol. 1, 151.
This according to John Adams‟ testimony.
45
Leonard W. Levy, “Origins of the Fourth Amendment,” Political Science Quarterly, Vol. 114, No. 1
(Spring, 1999), 79-101; Andrew Napolitano, The Constitution in Exile (Nashville, TN: Nelson Current, 2006), 20-
21.
46
Napolitano, 20-21.
47
Edmund S. Morgan, The Stamp Act Crisis: Prologue to Revolution (Chapel Hill, NC: Univ. of North
Carolina Press, 1995), 35.
30. Setliff 26
would in time elicit the corporate resistance of lesser magistrates and colonial assemblies, as well
as protests of principled patriots from Massachusetts to Virginia. Otis published his Rights of the
British Colonies Asserted and Proved. He maintained that a Parliament without American
representatives, though supreme in its authority, could not legally levy taxation upon Americans.
He rejected distinctions between internal and external taxation, and affirmed colonial legislatures
possessed authority to tax their respective states internally. Parliament he maintained had no
right to levy internal taxation upon the colonies.48
American arguments became more
innovative, as did their desire to assert self-government over their own affairs.
Opposition to the Stamp Act
In 1765 Parliament passed the Stamp Act which levied a tax on newspapers, almanacs,
legal documents, insurance policies, pamphlets, ship‟s papers, licenses, dice and even playing
cards and dice. Such stamps were required to validate legal documents like deeds, titles, and
wills. Newspapers could not be distributed without an authorized stamp affixed to the masthead.
Colonial response remained impassioned.49
In New York, the offensive act was reprinted under
the masthead, “The folly of England and the ruin of America!”50
It exposed colonials to the risk
of confiscation. The Newport Mercury, claimed the Stamp Act would “deprive us of all our
invaluable charter rights and privileges, drain us suddenly of our cash, occasion entire stagnation
of trade, discourage every kind of industry, and involve us to the most abject slavery.”51
John
Dickinson honed in on the perverse nature of the Stamp Act as it menaced customary legal
48
Morgan, The Stamp Act Crisis, 35-36; James Otis, “The Rights of the British Colonies Asserted and
Proved,” 1763, The American Republic: Primary Sources, Bruce Frohnen, ed., 119-134.
49
“The Stamp Act,” 1765, The American Republic: Primary Sources, Bruce Frohnen, ed. (Indianapolis, IN:
Liberty Fund, 2003), 110-114; Frederick Drake and Lynn R. Nelson, eds., 23-24; Graham, A Constitutional History
of Secession, 75.
50
Mercy Otis Warren, History of the Rise, Progress and Termination of the American Revolution, 2 Vols.
(Indianapolis, IN: Liberty Fund, 1994), 1:17.
51
Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American
Opposition to Britain, 1765-1776 (New York, NY: W.W. Norton), 51.
31. Setliff 27
norms, and he dubbed it a “dangerous innovation” that went beyond customary regulation.52
Samuel Adams rose at a Boston town meeting to state a man‟s property is the product of his
labor, and if these fruits are capriciously plundered then such an act strikes at a man‟s liberty.53
Merchants, tavern owners, lawyers, and printers denounced the tax that imperiled livelihoods. It
sparked protest in the American colonies, provoking the cry, “No taxation without
representation!”54
Colonists attributed economic hardship to these tax levies. Samuel Adams avowed that if
Americans were overburdened with taxes then their economy would soon collapse.55
The great
offense of the Stamp Act went beyond economic injury. Violators were to be tried in Vice
Admiralty courts, or military courts. This signified the first attempt by Parliament to curtail the
right of public jury trial by one‟s peers in the colonies. Prosecutions for violations were not
cognizable at common law, and were instead subjected to admiralty law jurisdiction whereby law
and questions of fact were determined by an imperially-appointed judge. The colonial
grievances pertained to constitutional usurpation, more so than economic injury. Amidst a flurry
of resolutions, town meetings, and assemblies, colonial statesmen sounded alarms about the
danger posed to the right of the accused to a public trial by jury.56
John Adams summed up the
52
Evans, The Theme is Freedom, 218. “I have looked over every statute relating to these colonies from the
first settlement to this time; and I find every one of them founded on this principle [of trade regulation], till the
Stamp Act administration. All before are calculated to regulate trade… Here we may observe an authority expressly
claimed and exerted to impose duties on these colonies, not for the regulation of trade… but for the single purpose
of levying money upon us. This I call an innovation; and a most dangerous innovation…”
53
Samuel Adams quoted in Mark Puls, Samuel Adams: Father of the American Revolution (New York,
NY: Palgrave MacMillan, 2006), 46-47.
54
Mercy Otis Warren, History of the Rise, Progress and Termination of the American Revolution, Lester
Cohen, ed. (Indianapolis, IN: Liberty Fund, 1989), 1:15. As the Mercy Otis Warren observed, “It had ever been
deemed essential to the preservation of the boasted liberties of Englishmen, that no grants of monies should be
made, by tolls, talliage, excuse, or any other way, without the consent of the people by their representative voice.
55
Puls, Samuel Adams, 60. “By restrictions and duties she is even in danger of putting an end to their
usefulness to her; whereas, by abolishing those duties and giving them indulgences, they would be enabled to repay
her a hundredfold.”
56
Reid, The Authority of Rights, 52-53. Since Whig resisters serving on juries could feasibly nullify loathed
parliamentary statutes by not enforcing them, and acquitting the prosecuted, imperialists reasoned the need to
32. Setliff 28
position in resolves that he drafted for the town of Braintree, Massachusetts:
We take it clearly… to be inconsistent with the spirit of the common law and the
essential fundamental principles of the British constitution that we should be
subjected to any tax imposed by the British Parliament . . . the most grievous
innovation of all is the alarming extension of the power of courts of admiralty…
no juries have concern there . . . [this] is directly repugnant to the Great Charter
itself; for by that charter . . . „no freeman shall be… condemned, but by lawful
judgment of his peers‟ . . .57
In Virginia, the tidewater aristocrats deferred to the Crown, and many enjoyed the
emoluments of its offices and grants. Patrick Henry as spokesperson for the western counties of
Virginia was not so differential towards King George. Henry, famous for his flashy oratory,
assailed the illegality of the Act. Henry held that power to tax remained in the colonial assembly
and any levies imposed require the assent of its people through their assemblies. He and his
cohorts published the Virginia Resolves descried and codified a multitude of abuses which they
hoped to put to an end. The first two resolutions insisted that the colonists were possessed of all
the right of Englishmen. The third proclaimed that the colonial principle of self-taxation was
integral to the British constitution. The fourth proclaimed the right of colonial self-government,
as each colony had the right to be governed only by the acts of its legislature approved by the
royal governor. The fifth echoed the sentiments of the third in a more forceful manner. The
sixth begged the logical inference of the forth and basically declared null and void all
usurpations of colonial self-government by the Crown and Parliament. The seventh climatically
declared that those who denied colonial self-government were traitors to Virginia and by
implication the English Constitution. On 30 May 1765, the Virginia House of Burgesses passed
suspend the right to trial by jury as a practical expedient. Perceptive of the colonial inclination to interpose against
such laws, the British gave no longer afforded deference to the colonists.
57
John Adams, “Braintree Instructions,” 1765, The American Republic: Primary Sources, Bruce Frohnen,
ed. (Indianapolis, IN: Liberty Fund, 2003), 115-116; Evans, The Theme is Freedom, 86; Clarence Carson, The
Rebirth of Liberty: The Founding of the American Republic 1760-1800 (New Rochelle, NY: Arlington House,
1973), 93.
33. Setliff 29
the first three of five draft resolves introduced at the behest of Patrick Henry. The latter two
points were considered too radical, though all of the resolves were published in the colonial
newspapers.58
Below, is the verbatim text of the first five resolutions of the Virginia Resolves of 1765:
Whereas the honorable House of Commons in England have late drawn into
question how far the general assembly of this colony has power to enact laws for
laying taxes and imposing duties payable to the pope of this his majesty's most
ancient colony — For settling and ascertaining the same to all future times, the
House of Burgesses of this present general assembly have come to the several
following resolutions:
Resolved, That the first adventurers and settlers of this his majesty's colony and
dominion of Virginia brought with them and transmitted to their posterity and all
others, his majesty's subjects since inhabiting in this is majesty's colony, all the
privileges and immunities that have at any time been held, enjoyed, and possessed
by the people of Great Britain.
Resolved, That by the two royal charters granted by King James the First, the
colonists aforesaid are declared entitled to all privileges of faithful, liege, and
natural born subjects, to all intents and purposes, as if they had been abiding and
born within the realm of England.
Resolved, That his majesty's liege people of this his most ancient colony have
enjoyed the right being thus governed by their own assembly, in the article of
taxes and internal police; and that the same have never been forfeited or any other
way yielded up, but have been constantly recognized by the kind and people of
Great Britain.
Resolved therefore, That the general assembly of the colony, together with his
majesty or his substitute have in their representative capacity the only exclusive
right and power to levy taxes and impositions on the inhabitants of this colony
and that every attempt to vest such a power in any person or persons whatsoever
other than the general assembly aforesaid is illegal, unconstitutional, and unjust,
and has a manifest tendency to destroy British, as well as American freedom.59
The Virginia Resolves manifested that solemn protest as a precursor to nullification.60
A
Connecticut minister Ezra Stiles spoke of the Virginia Resolves influence that “came abroad, and
58
John C. Miller, The Origins of the American Revolution (Kingsport, TN: Little Brown, 1943), 123-124;
Thomas E. Woods, Jr., The Politically Incorrect Guide to American History (Washington, DC: Regnery Pub., 2004),
12.
59
Patrick Henry, Patrick Henry: Life, Correspondence and Speeches, William H. Wirt, ed. (New York,
NY: Charles Scriber & Sons, 1891; reprint Harrisonburg, VA: Sprinkle Pub., 1993), 91-93.
60
Graham, A Constitutional History of Secession, 109.
34. Setliff 30
gave fire to the continent.”61
Indeed committees of correspondence transmitted the Virginia
Resolves throughout the thirteen colonies. Rhode Island followed in imitation of Virginia.
Rhode Island‟s Assembly convened in September, as delegates from Providence moved a series
of resolves modeled after those of Virginia. As adopted, the Rhode Island resolutions included
the first, second, fourth, fifth and sixth, of the original Virginia Resolves. The one difference
being that Rhode Island did not pay the usual salutary homage to His Majesty King George III
and inserted the phrasing “internal” before the word taxation. This was to clarify its grievance.
Rhode Island added an additional resolution. “That all the officers in this colony, appointed by
the authority thereof, be, and they are hereby, directed to proceed in the execution of their
respective offices in the same manner as usual; and that this Assembly will indemnify and save
harmless all the said officers, on account of their conduct, agreeably to this resolution.”62
In August 1765, shortly before the Stamp Act Congress convened, the Grenville ministry
collapsed. Charles Watson-Wentworth, 2nd Marquess of Rockingham formed a new ministry.
Burke and his Whig allies favored reconciliation with the colonies. British merchants suffered
from the colonial boycott of trade, and they too, began to protest the Act.63
William Pitt then
delivered a speech before the British House of Commons on 14 January 1776 on behalf of
American colonials describing the offensive legislation “an absurdity in terms.…”64
As its legal
61
Henry Mayer, A Son of Thunder: Patrick Henry and the American Republic (New York, NY: Franklin
Watts, 1991), 92.
62
Edmund S. Morgan, Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764-
1766 (Chapel Hill, NC: Univ. of North Carolina Press, 1995), 103.
63
Bernhard Knollenberg, Growth of the American Revolution: 1766-1775 (Indianapolis, IN: Liberty Fund,
2003), 14
64
William Pitt quoted in Graham, A Constitutional History of Secession, 75. “In ancient days, the Crown,
the barons, and the clergy possessed the lands. In those days, the barons and the clergy gave4 and granted to the
Crown. They and granted what was their own… [S]ince the discovery of America… the Commons are become the
proprietors of the land. The Church… has but a pittance. The property of the Lords, compared with that of
commons, is a drop of water in the ocean; and this House represents those Commons, the proprietors of land; and
those proprietors virtually represent the rest of its inhabitants. When, therefore, in this House we give and grant, we
give and grant what is our own. But in an American tax, what do we do? „We, your Majesty‟s Commons for Great
35. Setliff 31
flaws were laid bare, and now faced with a united opposition in both the colonies and in
England, Parliament repealed the Stamp Act on 17 March 1766, but refused to repudiate its new
assumption of power. Parliament abruptly passed the Declaratory Act and affirmed its right “to
bind them in all cases whatsoever.” This set off alarms to the colonists. After Parliament
renounced a direct tax over the colonies in favor of an indirect tax, a new indirect excise levied.65
British Treasurer Charles Townshend came forward in a renewed effort to extract funds
from the colonies. The purpose of his tax bill was to initiate levies on certain articles, namely
paper, glass, painters‟ colors, and other items imported into America. The newly appointed
collection agents in Boston were rendered wholly independent of the general assembly and local
magistrates.66
Townshend held that “America should be deprived of its militiating and
contradictory charters, and its royal governors, judges and attorneys be rendered independent of
the people.”67
In response, Samuel Adams issued a circular letter in February 1768 with the
backing of the Massachusetts House. The Massachusetts General Court censured the offensive
act as a violation of the tenet of no taxation without representation. Adams boldly condemned
the unlawful attempt to make colonial governors and judges independent of the people.68
Colonials, enthusiastic in their reception of Adams‟ circular letter, pushed for approval in their
representative assemblies. New Hampshire, Virginia, Maryland, Connecticut, Rhode Island,
Britain, give and grant to your Majesty‟— what? Our own property? No! „We give and grant to your Majesty‟ the
property of your Majesty‟s Commons of America! It is an absurdity in terms.”
65
“The Declaratory Act,” Bruce Frohnen, ed. The American Republic: Primary Sources (Indianapolis:
Liberty Fund, 2002), 135-136; James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional
Principles of American Government (Indianapolis, IN: Liberty Fund, 2000), 113; Mr. Nason quoted in 1 Feb., 1788,
66
Clarence Carson, A Basic History of the United States, Vol. 1., The Colonial Experience, 1607-1714
(Wadley, AL: American Textbook Committee, 1983), 158-159.
67
George Townshend quoted in George Bancroft, History of the United States, 3:218.
68
Samuel Adams quoted in Puls, Samuel Adams, 73-74. “It seems necessary that all possible care should be
taken, that the representations of the several assemblies, upon so delicate a point, should harmonize with each other.
The House, therefore, hope that this letter will be candidly considered in no other light than as expressing a
disposition freely to communicate their mind to a sister colony upon a common concern, in the same manner as they
would be glad to receive the sentiments of your or any other house of assembly on the continent”
36. Setliff 32
Georgia, and South Carolina soon endorsed the Resolves, either by their assembly or Speaker.69
The Intransigent Spirit of Resistance.
In 1766, Richard Bland published An Inquiry into the Rights of the British Colonies.
Drawing from the Whig interpretation of history, he claimed that the Saxon constitution had
been “founded upon Principles of the most perfect liberty.” Landed freeholders under this
constitution were all members of the Saxon parliament. Gradually they succumbed to the lust for
power following the Norman Conquest. Some five-hundred years later, Henry VIII abridged the
voting franchise. Freeman naturally possessed the right to emigrate, and being deprived of their
ancient rights was a powerful inducement for their settlement in North America. American
colonials, insisted Bland, maintained a unique position in history, having established their
colonies with little financial backing from the mother country. Their emigration into a sparsely-
populated land of aborigines put them under “the Law of Nature,” and at liberty to establish a
mutually binding relationship with the Crown. James I was obliged never to alter Virginia‟s
form of government, and this charter bound the Crown‟s successors. Virginia‟s consent to
English rule was thus conditional, and on the stipulation that James I‟s guarantee would remain
in place. Virginia possessed the right to taxation by the consent of her elected representatives.
Charles II abdicated the charter of James, in trying to levy a direct tax on Virginia, and thus
abdicated his claim to rule Virginia. Virginians had a historical basis through its charter and the
custom of its colonial assembly alone levying its direct taxes.70
Samuel Adams had long proven that the pen was mightier than the sword. When the
69
Carson, The Rebirth of Liberty, 95.
70
Richard Bland, An Inquiry into the Rights of the British Colonies (1st ed. 1766; repr. Williamsburg, VA:
Appeals Press, 1922); Richard Bland, “An Inquiry into the Rights of the British Colonies,” American Political
Writing During the Founding Era, 1760-1805, Charles S. Hyneman, Donald S. Lutz eds. 2 Vols. (Indianapolis, IN:
Liberty Press, 1983), 1:67; Gutzman, Virginia's American Revolution, 18.
37. Setliff 33
prospect of martial law loomed, he alerted patriots in the Boston Gazette on 17 October 1768.
The British repaid petitions of colonial grievances with the force of arms to compel their
compliance. In Adams‟ estimation, military occupation would destroy self-government in the
colonies unless it was stopped. He declared, “Where military power is introduced, military
maxims are propagated and adopted which are inconsistent with, and must soon eradicate, every
idea of civil government.”71
British soldiers were not bound by the city‟s laws in Boston.
The British East India Company despite its monopoly status had managed to run itself
nearly insolvent. By regulation, its exports had to pass through England first where the goods
were taxed, before being re-exported to the American colonies.72
This kindled the ire of patriots.
The Boston Tea Party commenced on 16 December 1773, as „The Sons of Liberty’ dressed as
Mohawk Indians dumped the duty-free cargo into the harbor. The British East India Company
retaliated by demanding ruinous legislation to suppress colonial resistance. Parliament obliged
in early 1774. In Delaware a similar event occurred nine days later, as colonists sunk another
seven hundred chests of sea to the bottom of the ocean. New Yorkers compelled the cargoes to
stay on their ships in port. John Adams joked that if they rise up they should do so in manner “to
be remembered, something notable and striking.”73
This fit the bill.
In 1774, the colonists were greeted with more injuries to add insults to their professed
grievances. The Coercive Acts were passed. The British tried to exact swift punishment upon
71
Samuel Adams quoted in Puls, Samuel Adams, 88-89. “This may, in time, make them look upon
themselves as a body of men different from the rest of the people; and as they, and they only, have the sword in their
hands, they may sooner or later begin to look upon themselves as the lords, and not the servants, of the people.” He
appealed to a spirit of civility to animate resistance.; William V. Wells, The Life and Public Services of Samuel
Adams, 3 Vols. (Boston, MA: Little Brown, 1888), Vol. 1., 221-222. “It behooves the public, then, to be aware of
the danger, and like sober men to avail themselves of the law while it is in their power. It is always safe to adhere to
the law, and to keep every man of every denomination and character within its bounds. Not to do this would be in
the highest degree imprudent.”
72
Allen and Schweikart, A Patriot’s History of the United States, 67; Graham, A Constitutional History of
Secession, 76.
73
Allen and Schweikart, A Patriot’s History of the United States, 68.
38. Setliff 34
the colonials—especially in Massachusetts. First, in accordance with the Boston Port Act,
Boston Harbor was blockaded and commerce closed, and a levy was assessed for payment for
the destroyed tea. Second, the charter of Massachusetts was annulled, and a governor‟s council
was appointed by the king. It implied the cessation of English common law protections for her
citizens. Third, the Quartering Act passed which compelled homeowners and innkeepers to put
up and board British soldiers and assume the costs attendant to their stay. Fourth, in accordance
with the Administration of Justice Act, British soldiers and officials could only stand trial in
England for crimes committed against colonial subjects, if the governor deemed it necessary.74
Virginian Richard Henry Lee wrote to Samuel Adams on 4 February 1775 and declared
outrage at pending legislation in the Parliament. “Should such Acts pass, will it not be proper for
all Americans to declare them essentially vile and void?” Such acts would be regarded as “void”
since they were contrary to the inherited rights of the colonists.75
Here was a portent of
nullification, by the interposition of their republican assemblies, which was presumed correct in
the face of repeated usurpation.
The first combined resistance occurred in September 1774 as delegates to a Continental
Congress convened in Philadelphia summoned by Virginia and Massachusetts. Delegates from
every colony except Georgia soon arrived. Congress received a series of resolves, known as the
Suffolk Resolves that declared loyalty to the king, but derided the “hand which would ransack
our pockets” and “the dagger to our bosoms.” Congress endorsed the Resolves. William Legge,
2nd Earl of Dartmouth, the British Secretary of State for the Colonies, apprehended that
Americans were keen on adopting any proposal for resistance that their Continental Congress
74
Allen and Schweikart, A Patriot’s History of the United States, 68-69; Carson, The Rebirth of Liberty,
98-99.
75
Gutzman, Virginia’s American Revolution, 22; Woods, Nullification, 104.
39. Setliff 35
may advocate, and would press for civil war.76
George III remarked that “the die is cast—the
colonies must either submit or triumph.”77
Richard Henry Lee saw the Boston Port Act as “a most violent and dangerous attempt to
destroy the constitutional liberty of and rights of all North America.” He had to summon
delegates to a continental congress to carry out a “systematic plan for” opposition to the
encroachment upon American “constitutional rights.” Boston‟s cause, Lee counseled Samuel
Adams, was “the common cause of British America.”78
Americans were now finding common
cause in resisting the perceived usurpations of the Crown-in-Parliament.
„Virginia and Massachusetts take the Helm‟
In the days before hostilities broke out, the Virginia House of Burgesses clashed with the
royal governor. Angry correspondence went back and forth between citizens and their
legislators. Governor Dunmore seized the arsenal, disabled weapons so as to render them useless
in anticipation of their requisition by colonial militia. He left Virginia in June 1775. The
Virginia House of Burgesses dissolved itself in Williamsburg; it reconvened in Richmond
forming a provisional government, the Virginia Convention of 1775. Delegates attending the
convention were elected just as landed freeholders had elected their delegates to the House of
Burgesses beforehand. On 15 May 1776, Virginia declared a declaration of independence
assuming all the attributes of sovereignty that the Crown had claimed over Virginia. The
Convention could rule in accord with the wishes of the people of the Virginia commonwealth.79
On 7 June 1776, Richard Henry Lee, motioned for the adoption of these famous words at
76
Allen and Schweikart, A Patriot’s History of the United States, 69. “The [American] people are generally
ripe for the execution of any plan the Congress advises, should it be war itself.”
77
King George III quoted in Carson, A Basic History of the United States, 1:165.
78
Richard Henry Lee quoted in Kevin Gutzman, Virginia's American Revolution, 12. He added, “…all
America will owe their political salvation in great measure, to the present virtue of Massachusetts Bay…”
79
Gutzman, Virginia's American Revolution, 24.
40. Setliff 36
the Continental Congress, “Resolved, That these United Colonies are, and of right ought to be
free, and independent States,” and he ended his proposal with a summons “that a plan of
confederation be prepared and transmitted to the respective Colonies for their consideration and
approbation.”80
The Virginia Convention of 1776 established a new fundamental basis of law in
her dominion, “a republican form of government,” which would become the perennial innovation
of the American cause. On 12 June 1776, the Convention adopted the Virginia Bill of Rights.
On 29 June, it framed and adopted the new Virginia Constitution. It was the handiwork of
George Mason and among the proposals that influenced its phraseology were Lee‟s
“Government Scheme” and Adams‟ “Thoughts on Government.” The preamble hearkened back
to the protest language of the Glorious Revolution that had decried the abuses of James II. Now
George III was the target of colonial ire. The Virginia Convention declared, “By which several
acts of misrule, the government of this country, as formerly exercised under the Crown of Great
Britain is totally dissolved,” and this declaration spoke for Virginia only. Virginia appointed a
governor and privy council that acted as a provisional body until the General Assembly could be
elected, which would adjourn sine die.81
Other states quickly followed Virginia‟s lead.
„The Declaration of Independence‟—the High Act of Interposition
George III made an oration before Parliament in late 1775, which was dispatched to
America for print on 4 January 1776. This upset Americans. Declaring the colonies to be in
rebellion, George III declared them outside of the protection of the Crown. This signaled the
irreconcilability the American cause with Great Britain.82
At the heart of the conflict were
conflicting interpretations of the English constitution. The one extolled by Americans was the
80
Richard Henry Lee quoted in Bernard Janin Sage, The Republic of Republics: or, American Federal
Liberty (Boston, MA: Little, Brown and Co., 1881), 549.
81
Graham, A Constitutional History of Secession, 91-94; Gutzman, Virginia's American Revolution, 25.
82
Ibid., 18.
41. Setliff 37
ancient constitution stemming from Magna Charta and culminating in the settlement of 1688,
with its customary limited powers, with rights secured as property from the caprice of the
government. The constitution under George III presumed the validity of Acts of Parliament. 83
When the Second Continental Congress convened on 10 May 1775, delegations were
received from all thirteen United Colonies of North America. This body had no independent
powers. When it omitted bills of credit, commissioned officers of the Continental Army and
Navy, directed military operations, granted letters of marquee and reprisal, or declared
independence and engaged in a treaty with France, it had acted upon authority delegated by the
several states. It was a body entirely amenable to those states.84
The Virginia Convention then authorized its delegates in the Continental Congress to
approve of a joint declaration that the United Colonies were “FREE AND INDEPENDENT STATES,
absolved of all allegiance and dependence upon Crown and Parliament of Great Britain.” Other
states followed suit in instructing their delegates to do the same.85
On 4 July 1776, the eloquent words of Jefferson would echo in history. “The history of
the present King of Great Britain is a history of repeated injuries and usurpations, all having in
direct object the establishment of an absolute Tyranny over these States.” The Crown‟s refusal
to allow rule by consent of the governed, deprivation of the colonists‟ right to trial by jury,
conscripting them into armies “to become the executioners of their friends and brethren,” and for
otherwise subjecting them to the tyranny of arbitrary rule elicited colonial disapproval and
resistance.86
Colonial charters supposedly guaranteed the rights of Englishmen to colonial
83
Evans, The Theme is Freedom, 210, 310-311; Reid, The Authority of Rights, 236.
84
McDonald, States’ Rights and the Union, 8.
85
Graham, A Constitutional History of Secession, 96.
86
Thomas Jefferson, et al., “The Declaration of Independence,” The Constitution of the United States and
the Declaration of Independence, Roger Pilon, ed. (Washington, DC: Cato Institute, 2000).
